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Defense win: State failed to meet burden at Kastigar hearing

State v. Karl L. Quigley, 2016 WI App 53; case activity (including briefs)

Karl Quigley confessed to sex offenses during an interrogation by a police detective, and later confessed to additional offenses while being questioned by his probation officer. The court of appeals rejects his Miranda challenge to his initial confession, but agrees that the state failed to show that evidence obtained after the statement to the P.O. was “derived from a legitimate source wholly independent of” that statement, as required by Kastigar v. United States, 406 U.S. 441 (1972). Because Quigley’s plea bargain incorporated charges from both sets of offenses, the court remands for plea withdrawal.

Both sets of alleged offenses had the same victim, P.R. A McDonald’s manager complained to the police that Quigley was acting inappropriately with her at the restaurant. A responding officer questioned both and examined, with Quigley’s consent, a cell phone containing nude photos and videos of P.R. The officer told Quigley that he “needed to come to the police department to speak with a detective about the case.” Quigley agreed, and was taken there, uncuffed, in the back of the officer’s car. (¶2).

Quigley was on probation at this time.  He testified both that he thought he would have a hold placed on him if he did not cooperate and that he would be placed on a hold regardless of whether he cooperated. (¶5). At the beginning of the interview, the detective told Quigley that he was not under arrest and was free to leave, and Quigley said that he understood. (¶6). He then told the detective about various offenses against P.R. At some point, Quigley told the detective he thought he was about to be arrested, though he also agreed that he had come to the station voluntarily. At this point, the detective read him the Miranda rights. (¶¶7-13).

Quigley first raised his Miranda issue post-conviction, as an IAC claim against trial counsel for not raising it before he pled. The court of appeals dispenses of the matter by addressing the merits, however, finding that Quigley was not in custody when he confessed before being read his Miranda rights. The court calls it a “close question” and addresses the usual factors: degree of restraint, location of interrogation, etc. In the end, the dominant consideration is the fact that the detective informed Quigley he was free to leave; the court rejects Quigley’s argument that his subjective knowledge that he would be placed on a probation hold overcame the detective’s assurance that he could go if he wished. (¶¶41-42).

However, the following day, Quigley made a statement to his probation officer regarding some other assaults against P.R. that had occurred in February 2012. Quigley was informed, consistent with State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769, and State v. Sahs, 2013 WI 51, 347 Wis. 2d 641, 832 N.W.2d 80, that “none of this information could be used against him in criminal proceedings.” (¶14). Nevertheless, two days later, the DOC forwarded the statement to the prosecutor, who asked the detective to interview P.R. again. When the detective did so, P.R. told him about a third set of assaults occurring in 2011. The state then charged Quigley with these 2011 assaults. In its motion to consolidate the complaints, the state noted that the re-interview of P.R. occurred because the state “suspected that there were more incidents as Quigley described additional sexual conduct to his probation agent.” (¶¶16-19).

And this is a big problem for the state! Kastigar immunity–that is, the immunity conferred when the state actually compels a person to make incriminating statements–is no joke. It encompasses both “use immunity,” meaning that the government may not directly use the statements in a criminal case, and “derivative use immunity,” meaning that it may not use any evidence directly or indirectly derived from the statements. The burden is on the government to show that any evidence it wishes to use is “derived from a legitimate source wholly independent of the compelled testimony.” Kastigar, 406 U.S. at 460. Moreover,

It is insufficient to meet the state’s burden by merely denying that an immunized statement was used, even if that denial is made in good faith. Rather, the government must “document[] or account[] for” “[e]ach step of the investigative chain” by which the evidence was obtained from a legitimate source wholly independent of the compelled statement.

(¶47 (citations omitted)).

Here, the state acknowledges that the reinterviewing of P.R. came about because of Quigley’s immunized statement (as it must, since the prosecutor averred as much and the circuit court found it as fact). The state argues that P.R. would have been interviewed at some unspecified later time, but the circuit court found it did not know “whether it was true” that the detective would have done so. (¶53). Beyond this, even if the detective testified that he had interviewed P.R. independent of Quigley’s statement, this would not have been enough, because “conclusory denials of use or derivative use are insufficient to meet the government’s burden.” (¶54, citing United States v. Hampton, 775 F.2d 1479, 1487 (11th Cir. 1985)).

Also missing the mark is the circuit court’s notion that because P.R. described different assaults than those Quigley mentioned in his immunized statement, her interview was not the fruit of that statement. As the court of appeals recognizes, this is a red herring; the content of P.R.’s statement is irrelevant to the question of whether it was obtained by the use of Quigley’s statement. (¶¶58-60).

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